Mitchell, R. v

1. MR JUSTICE HOLROYDE: On 19 July 2016 in the Crown Court at Kingston-upon-Thames this applicant was convicted of offences of robbery and possession of an offensive weapon. He was later sentenced to concurrent terms of imprisonment of 7 years and 3 years. His application for leave to appeal against his conviction was refused by the single judge, Langstaff J. It is now renewed to the Full Court.

2. The facts, in brief summary, were these. On an evening in late July 2015 a jeweller's shop in Hayes was attacked by a man armed with an axe. He smashed through the front window and snatched valuable jewellery from a window display. He was bravely confronted by a member of staff who had come out from the shop, but after a struggle the offender managed to escape. He had arrived at the scene in a car driven by another man and returned to that car. The two men were, however, unable to drive away from the scene because passers-by blocked their progress. They accordingly abandoned the car and fled on foot. The car was of course seized by the police and examined.

3. CCTV footage covering the scene showed that two men had approached the jeweller's shop in the car. The driver was undoubtedly a man called Donnelly. At a separate trial he was convicted of the offences of robbery and possession of an offensive weapon on the basis that he was engaged in a joint enterprise with the man who had smashed the shop window.

4. In the trial of this applicant the prosecution case was that it was he who had travelled in the car as a front seat passenger and he who had broken into the shop and snatched the jewellery. At trial, the fact of Donnelly's conviction was an agreed fact before the jury. The sole issue argued before the jury was whether they could be sure that it was this applicant who had been jointly involved with Donnelly.

5. By the conclusion of the prosecution case, the prosecution were able to point to the following features of the evidence.

6. First, the applicant and Donnelly were undoubtedly acquainted. Their respective phone records showed that there had been contact between them on a number of occasions over a period of three or four weeks, though not on either the day of the offences or the days immediately before and after. On the day of the offences both men had been in contact with a particular phone number: Donnelly had contacted it shortly before and after the offences; the applicant had contacted that number 13 times in the space of an hour starting soon after the offences.

7. Secondly, cell siting of the applicant's phone was consistent with the phone being at or in the vicinity of the jeweller's shop around the material time.

8. Thirdly, Donnelly's abandoned car was searched. In the footwell of the front passenger seat, where the other offender had clearly been sitting, there was found a JD Sports plastic bag on which the applicant had left his fingerprint.

9. Fourthly, the applicant when interviewed had made no comment in reply to any question and had thus put forward no explanation for any of the matters on which the prosecution relied.

10. At that stage of proceedings a submission of no case to answer was made by counsel on behalf of the applicant. The judge ruled against him and the trial proceeded. It ended, as we have said, in the applicant's convictions.

11. The grounds of appeal against conviction do not challenge the summing-up. They do, however, submit that the case should not have reached that stage because it should have been withdrawn from the jury at the close of the prosecution evidence. The particular features of the case which are relied upon in support of the argument are that it was common ground that the applicant lived in the locality of the jeweller's shop, so that his presence in that area would not be unexpected or remarkable, and that there was no evidence before the jury as to the area of coverage of the relevant radio mast upon which the applicant's phone had been detected around the time of the offence.

12. We have considered the written submissions but, like the learned single judge, we regard them as unarguable. This was a circumstantial case. The unexplained presence of the applicant's fingerprint on a bag in the passenger footwell of the car, at a time when the cell siting evidence was consistent with the applicant's phone being in the area of the offences, and against the background of his links to Donnelly were, in our judgment, a sufficient basis for a reasonable jury properly directed to convict. The recorder was therefore entitled to leave the case to the jury. It is not arguable that his decision was wrong or that these convictions are unsafe on that or any other ground. This renewed application is accordingly refused.